United States v. Curtiss-Wright Export Corporation

Decision Date06 April 1936
Citation14 F. Supp. 230
PartiesUNITED STATES v. CURTISS-WRIGHT EXPORT CORPORATION et al.
CourtU.S. District Court — Southern District of New York

Martin Conboy and F. W. H. Adams, Sp. Assts. to Atty. Gen. (Martin Conboy, Edward J. Ennis, and David W. Wainhouse, Asst. U. S. Attys., all of New York City, of counsel), for plaintiff.

George Z. Medalie, of New York City, for defendants John S. Allard and Clarence W. Webster.

Chadbourne, Stanchfield & Levy, of New York City (Robert D. Shea, of New York City, of counsel), for defendants Curtiss-Wright Export Corporation and Curtiss Aeroplane & Motor Co., Inc.

De Forest, Cullom & Elder, of New York City (Henry W. Steingarten, of New York City, of counsel), for defendants Barr Shipping Corporation and Robert R. Barr.

J. Edward Lumbard, Jr., of New York City, for defendant Samuel J. Abelow.

BYERS, District Judge.

The defendants have been indicted in this court for conspiring to violate the "Joint Resolution To prohibit the sale of arms or munitions of war in the United States under certain conditions," 48 Stat. 811, approved May 28, 1934, and the provisions of the Proclamation issued on May 28, 1934, 48 Stat. 1744, by the President of the United States pursuant to authority provided in section 1 of the Joint Resolution.

The indictment contains a second and substantive count, not presently involved.

The defendants have demurred to the conspiracy count because they object to facing a criminal charge for which they assert that there is no constitutional basis.

The duty of the court to inquire fully into the issues thus raised seems to pertain to the very essence of our present system of government.

Such was the procedure in United States v. Chavez, 228 U.S. 525, 33 S.Ct. 595, 57 L.Ed. 950.

The Joint Resolution of May 28, 1934, 48 Stat. 811, under which the prosecution is laid, is as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress.

"Sec. 2. Whoever sells any arms or munitions of war in violation of section 1 shall, on conviction, be punished by a fine not exceeding $10,000 or by imprisonment not exceeding two years, or both."

The Proclamation (48 Stat. 1744) bears the same date, and reads:

"Whereas section 1 of a joint resolution of Congress, entitled `Joint Resolution To prohibit the sale of arms or munitions of war in the United States under certain conditions,' approved May 28, 1934, provides as follows: * * *

"Now, Therefore, I, Franklin D. Roosevelt, President of the United States of America, acting under and by virtue of the authority conferred in me by the said joint resolution of Congress, do hereby declare and proclaim that I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and that I have consulted with the governments of other American Republics and have been assured of the cooperation of such governments as I have deemed necessary as contemplated by the said joint resolution; and I do hereby admonish all citizens of the United States and every person to abstain from every violation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted.

"And I do hereby enjoin upon all officers of the United States charged with the execution of the laws thereof, the utmost diligence in preventing violations of the said joint resolution and this my proclamation issued thereunder, and in bringing to trial and punishment any offenders against the same.

"And I do hereby delegate to the Secretary of State the power of prescribing exceptions and limitations to the application of the said joint resolution of May 28, 1934, as made effective by this my proclamation issued thereunder.

"In Witness Whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

"Done at the city of Washington this twenty-eighth day of May, in the year of our Lord nineteen hundred and thirty-four, and of the Independence of the United States of America the one hundred and fifty-eighth.

"Franklin D. Roosevelt. "By the President "Cordell Hull "Secretary of State."

The Proclamation of revocation is dated November 14, 1935, and so far as presently material is as follows:

"Whereas by a Proclamation of the President issued on May 28, 1934, pursuant to a Joint Resolution of Congress approved by the President on the same date, it was declared that the prohibition of the sale of arms and munitions of war in the United States to those countries then engaged in armed conflict in the Chaco might contribute to the reestablishment of peace between those countries; and

"Whereas by virtue of the Joint Resolution and the Proclamation above mentioned it became unlawful to sell arms or munitions of war to Bolivia or Paraguay; and

"Whereas the Peace Conference in Plenary Session in Buenos Aires formally adopted on October 28, 1935, a Resolution declaring that the war between Bolivia and Paraguay had come to an end; * * *

"Now, Therefore, I, Franklin D. Roosevelt, President of the United States of America, do hereby declare and proclaim that I have found that the prohibition of the sale of arms and munitions of war in the United States to Bolivia or Paraguay will no longer be necessary as a contribution to the reestablishment of peace between those countries, and the above-mentioned Proclamation of May 28, 1934, is hereby revoked as to the sale of arms and munitions of war to Bolivia or Paraguay from and after November 29, 1935, provided, however, that this action shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under the aforesaid Proclamation of May 28, 1934, or the Joint Resolution of Congress approved by the President on the same date; and that the said Proclamation and Joint Resolution shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.

"In Witness Whereof, I have hereunto set my hand and caused the Seal of the United States of America to be affixed.

"Done at the City of Washington this 14th day of November, in the year of our Lord nineteen hundred and thirty-five, and of the Independence of the United States of America the one hundred and sixtieth.

"Franklin D. Roosevelt. "Seal "By the President "Cordell Hull "Secretary of State."

The indictment as here involved charges the commission of three overt acts in pursuance of the alleged conspiracy, by three individual defendants and one corporate defendant, during July, 1934; that is, during the period in which the Joint Resolution was said to be in force in virtue of the first Presidential Proclamation and before its stated revocation, by the second.

The objections urged in behalf of the demurrer are:

First. That the Joint Resolution did not accomplish a valid delegation of legislative power to the Executive.

Second. That the Executive did not meet the requirements laid upon him by the terms of the Joint Resolution, in issuing his first Proclamation, and in consequence the latter was legally insufficient to render the former operative.

Third. That, in any case, prosecution for the alleged offenses could not be instituted after the effective date of the second Proclamation, November 29, 1935, and hence this indictment which was found January 27, 1936, does not lie.

The first objection draws into question the concept which is embodied in the following words of the Joint Resolution (48 Stat. 811):

"Resolved * * * That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged * * * may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics * * * he makes proclamation to that effect, it shall be unlawful to sell * * * until otherwise ordered by the President or by Congress," etc.

The argument runs, that Congress declares that the commission of a crime will result from the violation of a Joint Resolution, if that resolution is put into operation by the Executive, as the result of the exercise by him of an assumed capacity to forecast the probable result of so imparting vitality to the legislation.

It is said that this constitutes an attempt to substitute Executive determination, as to the probable future efficacy of a given law, for legislative judgment on the subject, and that the Constitution confides no such function to other than the law-making department of our government.

The expression quoted employs the words "if the President finds" which would be appropriate to an existing, or to a past state of facts; in their legal sense, they cannot refer to future contingencies, i. e., that which "may contribute to" a desired result, if precision in the formulation of a criminal law is fairly...

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2 cases
  • United States v. Export Corporation
    • United States
    • U.S. Supreme Court
    • December 21, 1936
    ...Joint Resolution. The court below sustained the demurrers upon the first point, but overruled them on the second and third points. (D.C.) 14 F.Supp. 230. The government appealed to this court under the provisions of the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, as amended, U.S.C......
  • United States v. Abelow
    • United States
    • U.S. District Court — Southern District of New York
    • April 14, 1936
    ...a result which was not otherwise attainable; this legislation has been held to be unconstitutional (U. S. v. Curtiss-Wright Export Corporation et al. D.C. 14 F.Supp. 230) and it becomes necessary to consider whether that decision requires that this demurrer be sustained as to the first The ......
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